**Exhibit 10.3**

 

THIRD PARTY

SECURITY AGREEMENT****(RadViewSoftware Ltd.)

 

This Third PartySecurity Agreement (this “**Agreement**”)is made and entered into as of this May 25, 2005 by and between RADVIEWSOFTWARE LTD., a company registered with the Israeli Registrar of Companiesunder number 51-1627952 (“**Guarantor**”),and COMERICA BANK (the “**Lender**”).

 

**RECITALS**

 

The Lenderproposes to enter into a credit facility with RADVIEW SOFTWARE, INC. (**“Borrower”**), pursuant to a certain Loan andSecurity Agreement dated May 25, 2005, as amended from time to time (the **“Loan Agreement”**). Guarantor expects toderive economic benefit from Lender doing so and dealing with Borrower inaccordance with the Loan Agreement, and has entered into an UnconditionalGuaranty with the Lender of even date herewith with respect to the present andfuture obligations of Borrower to Lender (as amended from time to time, the **“Guaranty”**), a copy of which is attachedhereto as Exhibit A. Guarantor wishes to secure performance and paymentof all its obligations to Lender under the Guaranty, under the Loan Agreementand under any of the Loan Documents (as defined in the Loan Agreement)(together the “**Guarantor’s Obligations**”),with certain of its assets. In addition, Guarantor has entered into a Share PledgeAgreement with the Lender of even date herewith with respect to its right,title and interest to all the equity securities in each of the ParentSubsidiaries (the “**Share Pledge Agreement**”),which also secures performance of the Guarantor Obligations.  All terms used without definition in thisAgreement (including the exhibits to this Agreement) shall have the meaningassigned to them in the Loan Agreement. Notwithstanding the above and thedefinitions set forth in the Loan Agreement, the term “Material Adverse Effect”,as used herein, shall relate to the Guarantor and the Parent Subsidiaries as awhole and shall also include the ability of Guarantor to perform the GuarantorObligations. The term “Change in Control”, as used herein, shall relate toGuarantor as opposed to the Borrower.

 

NOW, THEREFORE,for good and valuable consideration, receipt of which is hereby acknowledged,and intending to be legally bound, as collateral security for the prompt andcomplete payment when due of the Guarantor Obligations, Guarantor herebyrepresents, warrants, covenants and agrees as follows:

 

1.             Grantof Security Interests.  To secure allof the Guarantor’s Obligations, Guarantor grants to the Lenders the followingsecurity interests:

 

(a)           subject to Section 1(d)(i), a firstpriority fixed charge on all of Guarantor’s right, title and interest to andunder its Intellectual Property Collateral (including without limitation thoseCopyrights, Patents and Trademarks listed on Exhibit B  hereto and including without limitation allproceeds thereof (such as, by way of example but not by way of limitation,license royalties and proceeds of infringement suits), the right to sue forpast, present and future infringements, all rights corresponding theretothroughout the world and all re-issues, divisions continuations, renewals,extensions and continuations-in-part thereof (together “**Fixed IPCharge**”);

 

(b)           subject to Section 1(d)(ii), a firstpriority fixed charge (subject only to the prior security interests of: (i)Reichmann, Albar and Avis in, collectively, up to $100,000 of cash, and (ii)Bank Hapoalim, in each case securing only those obligations specified inSchedule 2.3 hereto) (“**Fixed Bank AccountCharge**”) on the Guarantor’s bank account at Bank Hapoalim, Branch#610, Account#426990 (the “**Bank Account**”)and including without limitation all of its cash, investment property,securities, deposit accounts, trust accounts and any other value attributed tothe Guarantor and held by Bank Hapoalim in Israel (“**Bank Hapoalim**”) at the Bank Account or at any other account ordeposit box with Bank Hapoalim now or hereinafter acquired (collectively the “**Bank Hapoalim Collateral**”); and

 

(c)           a first ranking floating charge (the “**Floating Charge**”), on all of Guarantor’srights, titles and interest in all its present and future tangible andintangible assets of any kind whether contingent or absolute relating to theproperty of the Guarantor described in Exhibit C (collectively, the“**Floating Collateral**”). For the 

 

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avoidanceof doubt such Collateral shall exclude all assets of the Company with theexception of the following (i) Intellectual Property Collateral, (ii)Collateral (as defined in the Share Pledge Agreement) and (iii) the BankHapoalim Collateral, all as further set forth and described in Exhibit C.

 

(d)           Notwithstanding any other provisionof this Agreement or the other Loan Documents: (i) Guarantor’s grant to theLender of a security interest in the Intellectual Property Collateral shall notprevent Guarantor from granting or restrict Guarantor’s ability to grant, priorto the occurrence of an Event of Default, non-exclusive licenses to theIntellectual Property Collateral to its customers in the ordinary course ofbusiness; and (ii) Guarantor’s grant to the Lender of a security interest inthe Bank Account shall not prevent Guarantor from withdrawing funds from theBank Account in the ordinary course of business so long as no Event of Defaultexists or would result from any such withdrawal.

 

AllFloating Collateral pledged to the Lender in accordance with the terms of thisAgreement by way of, Fixed IP Charge, Fixed Bank Account Charge or FloatingCharge, shall hereinafter be referred to as the “**Charged Collateral**”.

 

2.     Guarantor’s Representations and Warranties.  Except as set forth in the attachedSchedules, Guarantor represents and warrants to the Lender, as follows:

 

## 2.1           Due Organizationand Qualification.  Guarantor is acompany duly existing under the laws of the State of Israel and is licensed todo business in any jurisdiction in which the conduct of its business or itsownership of property requires that it be so qualified, except where thefailure to do so would not reasonably be expected to cause a Material AdverseEffect.

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## 2.2           DueAuthorization; No Conflict; Validity and Enforceability.  The execution, delivery, and performance ofthis Agreement are within Guarantor’s powers, have been duly authorized, andare not in conflict with nor constitute a breach of any provision contained inGuarantor’s Memorandum or Articles of Association, nor will they constitute anevent of default under any material agreement by which Guarantor is bound.  Guarantor is not in default under anyagreement by which it is bound, except to the extent such default would notreasonably be expected to cause a Material Adverse Effect. This Agreementincluding but not limited to the creation of the Charged Collateral, shallconstitute valid and binding obligations of the Guarantor, enforceable inaccordance with their terms (except as may be limited by bankruptcy, insolvencyand similar laws affecting the enforcement of creditor rights in general andsubject to general principles of equity).

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## 2.3           FloatingCollateral.  Guarantor has rights inor the power to transfer all or any portion of the Floating Collateral, andsuch Floating Collateral is free and clear of Liens, adverse claims, andrestrictions on transfer or pledge.

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## 2.4           IntellectualProperty Collateral.  Guarantor isthe sole owner of the Intellectual Property Collateral, except for licensesgranted by Guarantor to its customers in the ordinary course of business.  To the best of Guarantor’s knowledge, each ofthe Copyrights, Trademarks and Patents is valid and enforceable, and no part ofthe Intellectual Property Collateral has been judged invalid or unenforceable,in whole or in part, and no claim has been made to Guarantor that any part ofthe Intellectual Property Collateral violates the rights of any third partyexcept to the extent such claim would not reasonably be expected to cause aMaterial Adverse Effect.  Guarantor’srights as a licensee of intellectual property do not give rise to more than 5%of its gross revenue in any given month, including without limitation revenuederived from the sale, licensing, rendering or disposition of any product orservice.  All of the IntellectualProperty Collateral that is material to the businesses of either Guarantor orBorrower or that gives rise to more than 5% of either Guarantor’s or Borrower’sgross revenue in any given month from and after the date hereof: (a) wasdeveloped after January 1, 2000 without any support or funding from the IsraeliOffice of the Chief Scientist of the Industry of Ministry and Trade (the“OCS”), (b) is not derived from researchand development developed under any program sponsored by the OCS, (c) is freelytransferable without regard to any limitations, restrictions, or requirementsfor approvals or consent from the OCS or any other governmental body,and (d) is not subject to the restrictions set forth under the Israeli law forthe Encouragement of Industrial Research and Development, 1984, as amended.

 

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## 2.5           Litigation.  There are no actions or proceedings pendingby or against Guarantor before any court or administrative agency in which anadverse decision would reasonably be expected to have a Material AdverseEffect.

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## 2.6           No MaterialAdverse Change in Financial Statements. All consolidated and consolidating financial statements related toGuarantor and any Parent Subsidiary that are delivered by Guarantor to Lenderfairly present in all material respects Guarantor’s consolidated andconsolidating financial condition as of the date thereof and Guarantor’sconsolidated and consolidating results of operations for the period thenended.  There has not been a materialadverse change in the consolidated or in the consolidating financial conditionof Guarantor since the date of the most recent of such financial statementssubmitted to Lender.

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## 2.7           Solvency, Paymentof Debts.  Guarantor is able to payits debts (including trade debts) as they mature; the fair saleable value ofGuarantor’s assets (including goodwill minus disposition costs) exceeds thefair value of its liabilities; and Guarantor is not left with unreasonablysmall capital after the transactions contemplated by this Agreement.

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## 2.8           Compliance withLaws and Regulations.  Guarantor hasnot violated any statutes, laws, ordinances or rules applicable to it, theviolation of which would reasonably be expected to have a Material AdverseEffect. Guarantor has filed or caused to be filed all tax returns required tobe filed, and have paid, or have made adequate provision for the payment of,all taxes reflected therein except those being contested in good faith withadequate reserves under GAAP or where the failure to file such returns or paysuch taxes would not reasonably be expected to have a Material Adverse Effect.

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## 2.9           GovernmentConsents.  Guarantor has obtained allconsents, approvals and authorizations of, made all declarations or filingswith, and given all notices to, all governmental authorities that are necessaryfor the execution of this Agreement and for the continued operation ofGuarantor’s business as currently conducted, except where the failure to do sowould not reasonably be expected to cause a Material Adverse Effect.

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3.             PositiveCovenants.

 

## 3.1           GovernmentCompliance.  Guarantor shall comply,and shall cause each Parent Subsidiary to comply, with all statutes, laws,ordinances and government rules and regulations to which it is subject, andshall maintain, and shall cause each Parent Subsidiaries to maintain, in forceall licenses, approvals and agreements, the loss of which or failure to complywith which would reasonably be expected to have a Material Adverse Effect.

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## 3.2           Registration ofIntellectual Property Rights. Guarantor shall register or cause to be registered on an expedited basis(to the extent not already registered) with the United States Patent andTrademark Office, the United States Copyright Office and the Israeli Registrarof Patents and Trademarks, as the case may be, those registrable intellectualproperty rights now owned or hereafter developed or acquired by Guarantor, tothe extent that Guarantor, in its reasonable business judgment, deems itappropriate to so protect such intellectual property rights. Guarantor shallpromptly give Lender written notice of any applications or registrations ofintellectual property rights filed with the United States Patent and TrademarkOffice or Israeli Registrar of Patents and Trademarks, including the date ofsuch filing and the registration or application numbers, if any. Guarantorshall (i) give Lender not less than 30 days prior written notice of the filingof any applications or registrations with the United States Copyright Office,including the title of such intellectual property rights to be registered, assuch title will appear on such applications or registrations, and the date suchapplications or registrations will be filed; (ii) prior to the filing of anysuch applications or registrations, execute such documents as Lender mayreasonably request for Lender to maintain its perfection in such intellectualproperty rights to be registered by Guarantor; (iii) upon the request ofLender, either deliver to Lender or file such documents simultaneously with thefiling of any such applications or registrations; (iv) upon filing any suchapplications or registrations, promptly provide Lender with a copy of suchapplications or registrations together with any exhibits, evidence of thefiling of any documents requested by Lender to be filed for Lender to maintainthe perfection and priority of its security interest in such intellectualproperty rights, and the date of such filing. Lender shall execute and deliversuch additional instruments

 

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## and documents fromtime to time as Lender shall reasonably request to perfect and maintain theperfection and priority of Lender’s security interest in the IntellectualProperty Collateral. Guarantor shall (i) protect, defend and maintain thevalidity and enforceability of the trade secrets, Trademarks, Patents andCopyrights, (ii) use commercially reasonable efforts to detect infringements ofthe Trademarks, Patents and Copyrights and promptly advise Lender in writing ofmaterial infringements detected and (iii) not allow any material Trademarks,Patents or Copyrights to be abandoned, forfeited or dedicated to the publicwithout the written consent of Lender, which shall not be unreasonablywithheld. Lender may audit Lender’s Intellectual Property Collateral to confirmcompliance with this Section 3.2, provided such audit may not occur more oftenthan twice per year, unless an Event of Default has occurred and iscontinuing.  Lender shall have the right,but not the obligation, to take, at Guarantor’s sole expense, any actions thatGuarantor is required under this Section 3.2 to take but which Guarantor failsto take, after 15 days’ notice to Guarantor. Guarantor shall reimburse and indemnify Lender for all reasonable costsand reasonable expenses incurred in the reasonable exercise of its rights underthis Section 3.2.

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## 3.3           Perfection ofSecurity Interest.  Guarantor shallexecute and deliver such documents as Lender reasonably deems necessary tocreate, perfect and continue the security interest in any portion of theCharged Collateral.  Notwithstanding theabove, by no later then within twenty-one (21) days of the date hereof,Guarantor shall be obligated to file this Agreement, together with theGuaranty, with the Israeli Registrar of Companies and provide Lender saiddocuments together with forms for creating a floating charge stamped to indicate filing with the IsraeliRegistrar of Companies in the form attached hereto as Exhibit D and acertificate of registration evidencing such filing.

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## 3.4           Insurance ofCharged Collateral.  Guarantor, atits expense, shall keep the Charged Collateral insured against loss or damageby fire, theft, explosion, sprinklers, and all other hazards and risks, and insuch amounts, as ordinarily insured against by other owners in similar businessesconducted in the locations where Guarantor’s business is conducted on the datehereof.  Guarantor shall also maintaininsurance relating to Guarantor’s ownership and use of the Charged Collateralin amounts and of a type that are customary to businesses similar to Guarantor’s.All such policies of insurance shall be in such form, with such companies, andin such amounts as reasonably satisfactory to the Lender.  All such policies of property insurance shallcontain Lender’s loss payable endorsement, in a form satisfactory to Lender,showing Lender as an additional loss payee thereof and all liability insurancepolicies shall show Lender, as an additional insured, and shall specify thatthe insurer must give at least twenty (20) days notice to Lender beforecanceling its policy for any reason. Upon Lender’s request, Guarantor shall deliver to Lender certifiedcopies of such policies of insurance and evidence of the payments of allpremiums therefor. If an Event of Default has occurred, all proceeds payableunder any such policy shall, at the option of Lender, be payable to Lender tobe applied on account of the Guarantor Obligations.

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## 3.5           Records.  Guarantor shall prepare and keep, inaccordance with generally accepted accounting principles consistently applied,complete and accurate records regarding any portion of the Charged Collateral,and, if and when requested by the Lender, shall prepare and deliver a completeand accurate schedule of all or any portion of the Charged Collateral in suchdetail as the Lender may reasonably require.

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## 3.6           Inspection ofGuarantor.  Upon reasonable priornotice and at reasonable times during normal business hours, Guarantor herebyauthorizes Lender’s officers, employees, representatives and agents to inspectall or any portion of the Charged Collateral and to discuss the ChargedCollateral and any books and records related thereto with Guarantor’s officersand employees.

 

## 3.7           Fees and Costs.  Guarantor shall pay all reasonableregistration fees and expenses, including reasonable attorneys’ fees, incurredby Lender in the preservation, realization, enforcement or exercise of anyLender’s rights under this Agreement.

 

## 3.8           Notice to Lender.  Guarantor shall be obligated to providewritten notice to Lender of: (i) any litigation or administrative or regulatoryproceeding affecting Guarantor where relief requested would reasonably beexpected to have a Material Adverse Effect; (ii) any substantial dispute which may exist between Guarantor or anygovernmental or regulatory authority, which would reasonably be expected tohave a Material Adverse Effect; (iii) any change in the location of any ofGuarantor’s places of business or any portion of the Charged Collateral atleast thirty (30) days in advance of such change, or of the establishment ofany new, or the discontinuance of any existing, place of business and (iv) anydispute or default by Guarantor or any other party under any joint

 

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## venture, partnering, distribution, cross-licensing, strategic alliance,collaborative research or manufacturing, license or similar agreement whichwould reasonably be expected to have a Material Adverse Effect.

 

4.             Negative Covenants.  Guarantor shall not:

 

## 4.1           Mergers orAcquisitions.  Merge or consolidate,or permit any of its Parent Subsidiaries to merge or consolidate, with or intoany other business organization (other than mergers or consolidations of aParent Subsidiary (other than Borrower) into another Parent Subsidiary or of aParent Subsidiary (other than Borrower) into Guarantor), or acquire, or permitany of its Parent Subsidiaries to acquire, all or substantially all of thecapital stock or property of another Person except where (i) such transactionsdo not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event ofDefault has occurred, is continuing or would exist after giving effect to suchtransactions, (iii) such transactions do not result in a Change in Control, and(iv) Guarantor is the surviving entity.

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## 4.2           Indebtedness.  Create, incur, assume, guarantee or be orremain liable with respect to any Indebtedness, or permit any Parent Subsidiaryso to do, other than Permitted Indebtedness, or prepay any Indebtedness or takeany actions which impose on Guarantor an obligation to prepay any Indebtedness,except Indebtedness to Lender.

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## 4.3           Encumbrances.  Create, incur, assume or allow any Lien withrespect to any Charged Collateral except for Permitted Liens, or covenant toany other Person that Guarantor in the future will refrain from creating,incurring, assuming or allowing any Lien with respect to any ChargedCollateral.

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## 4.4           Distributions.  Pay any dividends or make any otherdistribution or payment on account of or in redemption, retirement or purchaseof any capital stock, except that Guarantor may (i) repurchase the stock offormer employees pursuant to stock repurchase agreements as long as an Event ofDefault does not exist prior to such repurchase or would not exist after givingeffect to such repurchase, and (ii) repurchase the stock of former employeespursuant to stock repurchase agreements by the cancellation of indebtednessowed by such former employees to Guarantor regardless of whether an Event ofDefault exists.

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## 4.5           Investments.  Directly or indirectly acquire or own, ormake any Investment in or to any Person, or permit any Parent Subsidiaries soto do, other than Permitted Investments or as required under the Guaranty, ormaintain or invest any of its property with a Person other than Lender orLender’s Affiliates or permit any Parent Subsidiary to do so unless such Personhas entered into a control agreement with Lender, in form and substancesatisfactory to Lender, or suffer or permit any Parent Subsidiary to be a partyto, or be bound by, an agreement that restricts such Parent Subsidiary frompaying dividends or otherwise distributing property to Guarantor.

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5.     Further Assurances. At any time and from time to time,upon the written request of the Lender and at the sole expense of Guarantor,Guarantor shall promptly and duly execute and deliver any and all such furtherinstruments and documents and take such further action as Lender may reasonablydeem desirable to obtain the full benefits of this Agreement and of the rightsand powers herein granted, including, without limitation, (a) to secureall consents and approvals necessary or appropriate for the grant of securityinterests to the Lender on any Charged Collateral, (b) filing any forms ofdocumentation with the Israeli Registrar of Companies and/or the Registrar ofPledges, as applicable and as necessary with respect to the security interestsgranted hereby and (c) transferring Charged Collateral to Lender’spossession (if a security interest in such Charged Property can be perfected bypossession). Guarantor also hereby authorizes Lender to file any such documentswithout the signature of Guarantor.  If,after an Event of Default, any amount payable under or in connection with anyof the Charged Collateral is or shall become evidenced by any Instrument, suchInstrument, other than checks and notes received in the ordinary course ofbusiness, shall be duly endorsed in a manner satisfactory to Lender anddelivered to Lender promptly upon Guarantor’s receipt thereof.

 

6.     Events of Default. The occurrence of any Event of Default under the Loan Agreement, thefailure by Guarantor to perform any of the Guarantor Obligations, the breach ofany representation under this Agreement or the Guaranty and the failure toperform any covenant under this Agreement, shall each constitute an “Event of 

 

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Default” under this Agreement. For the avoidance of doubt, a “MaterialAdverse Change” as defined in Section 8.3 of the Loan Agreement shall relate tothe Guarantor and the Parent Subsidiaries as a whole.

 

7.     Remedies on Default.  

 

(a)    Upon the occurrence of an Event of Default,Lenders shall have the right to notify Guarantor of the immediatecrystallization of each of the Fixed IP Charge, Fixed Bank Account Charge andFloating Charge, over the Charged Collateral or any part thereof and shall beentitled to adopt all the measures it deems fit in order to recover the fundscovered by the Guarantor’s Obligations.

 

(b)     Upon the occurrence of an Event of Default,the Lender may, as attorney-in-fact of Guarantor  (and, for the purpose hereof, Guarantorirrevocably appoints Lender to be its attorney-in-fact),  sell all or any of the Charged Collateral bypublic auction or otherwise, by itself or through others, for cash orinstallments thereof or otherwise, at a price and on such terms as Lender inits sole and absolute discretion shall deem fit, and likewise Lender may of itsown accord or through the court or an execution office, realize the ChargedCollateral, inter alia, by appointing a receiver or receiver and manager onbehalf of Lender, who shall be empowered, inter alia:

 

#### (i)            to call in all orany part of the Charged Collateral;

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#### (ii)           to carry on or toparticipate in the management of the business of Guarantor as it sees fit;

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#### (iii)          to sell or agree tothe sale of the Charged Collateral, in whole or in part, to dispose the same oragree to dispose of same in such other manner on such terms as it deems fit;and

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#### (iv)          to make such otherarrangement regarding the Charged Collateral or any part thereof as it deemsfit.

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(c)    All income to be received by the receiver orthe manager from the Charged Collateral as well as any proceeds to be receivedby Lender and/or by the receiver or manager from the sale of the ChargedCollateral or any part thereof shall be applied in the following order:

 

#### (i)            Firstly, to thedischarge of all the costs and expenses incurred and which may be incurred inconnection with the collection of the Guarantor Obligations, including thecosts and remuneration of the receiver or the manager in such amount as shallbe prescribed by the Lender or approved by the court or the execution officeand

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#### (ii)           Secondly, to thedischarge of the Guarantor Obligations becoming due to Lender on account ofinterest, damages, commissions, fees, charges and expenses due and becoming dueto Lender pursuant to this Agreement.

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Should Lender decide to realize securities, bills andother negotiable instruments, then three (3) Business Days’ advance noticeregarding the steps that Lender intends to take shall be deemed to bereasonable advance notice for the purpose of Section 19(b) of the Pledges Law,5727-1967 or any other statutory provisions in substitution therefor.

 

8.     Power of Attorney. Guarantor hereby appoints Lender, asits attorney-in-fact (i) to prepare, sign and file or record, for Guarantor inGuarantor’s name, any documents, applications for registration and like papersand to take any other action deemed by Lender necessary solely in order toperfect the security interest of the Lender hereunder and (ii) after theoccurrence and during the continuance of an Event of Default,  to collect any of the Charged Collateral, andto perform any obligations of Guarantor hereunder, at Guarantor’s expense, butwithout obligation to do so. 

 

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9.     Remedies Cumulative. Lender’s rights and remedies under this Agreement, the Loan Agreement,Loan Documents, the Guaranty, the Share Pledge Agreement and all otheragreements shall be cumulative.  Lendershall have all other rights and remedies not inconsistent herewith as providedunder law, or in equity.  No exercise byLender of one right or remedy shall be deemed an election, and no waiver byLender of any Event of Default on Guarantor shall be deemed a continuingwaiver.  No delay by Lender shallconstitute a waiver, election, or acquiescence by it.  No waiver by Lender shall be effective unlessmade in a written document signed by Lender and then shall be effective only inthe specific instance and for the specific purpose for which it was given. 

 

10.   Amendment of Loan Agreement.  Guarantor authorizes Lender, without noticeor demand and without affecting its liability hereunder, from time to time to(a) renew, extend, or otherwise change the terms of the Loan Agreement, orany part thereof; (b) take and hold security for the payment of the LoanAgreement, and exchange, enforce, waive and release any such security; and(c) apply such security and direct the order or manner of sale thereof asLender in its sole discretion may determine.

 

11.   Insolvency.  If either Guarantor becomes insolvent or ifadjudicated bankrupt or files a petition for liquidation, reorganization,arrangement, composition or similar relief under any present or futureprovision of the Israeli Companies Ordinance (New Version), 1983 or the IsraeliCompanies Law, 1999 or pursuant to any similar Israeli law or foreign law ofanother jurisdiction, as applicable, or if such a petition is filed againstGuarantor and such petition is not dismissed within 90 days from the date ofits filing, and in any such proceeding some or all of any indebtedness orobligations of the Guarantor under the Guaranty are terminated or rejected orany obligation of Guarantor is modified or abrogated, or if Guarantor’sobligations are otherwise avoided for insolvency, bankruptcy or any similarreason, Guarantor agrees that Guarantor’s liability hereunder shall not therebybe affected or modified and such liability shall continue in full force andeffect as if no such action or proceeding had occurred.  This Agreement shall continue to be effectiveor be reinstated, as the case may be, if any payment must be returned by Lenderupon the insolvency, bankrupt­cy or reorganization of Guarantor, any otherperson, or otherwise, as though such payment had not been made.

 

12.   Notices.  Any notice given by any party hereunder shallbe in writing and personally delivered, sent by overnight courier, or sent byfacsimile, or other authenticated message, charges prepaid, to the other party’sor parties’ addresses shown on the signature page of this Agreement.  Each party may change the address or facsimilenumber to which notices, requests and other communications are to be sent bygiving written notice of such change to each other party.  Notice given by hand delivery shall be deemedreceived on the date delivered; if sent by overnight courier, on the nextBusiness Day after delivery to the courier service; and if by facsimile, on thedate of transmission. 

 

13.   Choice of Law and Venue. ThisAgreement shall be governed by, and construed in accordance with, the laws ofthe State of Israel, without regard to principles of conflicts of law.  Each of Guarantor and Lender hereby submitsto the exclusive jurisdiction of the courts located in Tel Aviv and no othercourt of law in any other district shall have jurisdiction.

 

14.   General Provisions.

 

(a)    Guarantor shall cooperate with Lender andexecute all documents as may be reasonably necessary to register the chargescreated hereunder with the Israeli Registrar of Companies and/or Registrar ofPledges and shall bear all stamp taxes with respect to such registrations.

 

(b)     The amounts being secured hereunder areunlimited in amount and the charges created herein are secured in accordancewith terms of the Guaranty and with the Loan Agreement. The charges createdhereunder shall be cancelled, and Lender shall promptly execute and provideGuarantor with all documents necessary to release the charges immediately uponthe cessation of all Guarantor Obligations and upon the indefeasible payment in full of the Obligations and satisfaction of allBorrower’s obligations under the Loan Agreement and other Loan Documents, andif Lender has no further obligations under its Commitments.

 

(c)     Successors and Assigns.  This Agreement shall bind and inure to thebenefit of the respective successors and permitted assigns of each of theparties; provided, however, that neither this Agreement nor any rightshereunder may be assigned by Guarantor without Lender’s prior written consent.

 

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Lender shall have the right without the consent of or notice toGuarantor to assign, sell, transfer, negotiate, or grant participation in allor any part of, or any interest in, Lender’s obligations, rights and benefitshereunder.

 

(d)    Indemnification.  Guarantor shall defend, indemnify and holdharmless Lender and each of their respective officers, employees, and agentsagainst:  (a) all obligations,demands, claims, and liabilities claimed or asserted by any other party inconnection with Guarantor’s failure to comply with the terms of this Agreement;and (b) all losses or expenses in any way suffered, incurred, or paid byLender as a result of or in any way arising out of, following, or consequentialto Guarantor’s failure to comply with the terms of this Agreement (includingwithout limitation reasonable attorneys fees and expenses), except for lossescaused by Lender’s gross negligence or willful misconduct.

 

(e)    Time of Essence.  Time is of the essence for the performance ofall obligations set forth in this Agreement.

 

(f)     Severability of Provisions.  Each provision of this Agreement shall be severablefrom every other provision of this Agreement for the purpose of determining thelegal enforceability of any specific provision.

 

(g)    Entire Agreement;Amendments in Writing; Integration. This Agreement cannot be amended or terminated orally.  This Agreement, the Loan Agreement, theGuarantee Agreement and the Share Pledge Agreement including all exhibits,schedules and annexes thereto, constitute the full and entire understanding andagreement between the parties with regard to the subject matters hereof andthereof.  The preamble and exhibitshereto constitute an integral part hereof.

 

(h)    Counterparts.  This Agreement may be executed in any numberof counterparts and by different parties on separate counterparts, each ofwhich, when executed and delivered, shall be deemed to be an original, and allof which, when taken together, shall constitute but one and the same Agreement.

 

(i)     Survival.  All covenants, representations and warrantiesmade in this Agreement shall continue in full force and effect so long as anyObligations remain outstanding, any Guarantor Obligations remain outstanding,or Lender has any Commitment to Borrower. The obligations of Guarantor to indemnify Lender with respect to theexpenses, damages, losses, costs and liabilities described in Section14(d) shall survive until all applicable statute of limitations periodswith respect to actions that may be brought against Lender have run.

 

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**INWITNESS WHEREOF,**the parties have executed this Agreement onthe date set forth above.

 

**“Guarantor”**

 
| RADVIEW SOFTWARE LTD.        |
|------------------------------|
|                         |
| By:                          | /s/ CHRISTOPHER DINEEN |   |
|                         |
| Name:                        | Christopher Dineen |   |
| Title:                       | Chief Financial Officer |   |
|                         |
| Address for Notices:         |
| 7 New England Executive Park |   |
| Burlington, MA 01803         |   |
|                         |   |
| Facsimile: (781) 238-8875    |
|                              |  |  |  |  |  |

 

With a copy to:

Fulbright & Jaworski L.L.P.

666 Fifth Avenue

New York, NY  10103

Attention: Neil Gold, Esq.

Facsimile: (212) 318-3400

 

 

**“Lender”**

 

 

**COMERICA BANK**

 
|   |                |
|--------|---------------------|
| By:    | /s/ PAULA J. HOWELL |   |   |
| Name:  | Paula J. Howell     |   |   |
| Title: | SVP                 |   |   |
|        |                     |  |  |  |  |

 

Address for Notices:

2321 Rosencrans Ave., Suite 5000

El Segundo, CA 90245

Attn: Manager

Facsimile: (310) 297-2290

 

With a copy to:

100 Federal Street, 28th Floor

Boston, MA 02110

Attn: Chris Lloyd

Facsimile: (617) 757-6310

 

With an additional copy to:

Yigal Arnon & Co.

One Azrieli Center

46th Floor - Round Tower

Tel-Aviv, Israel 67021

Attn: Simon Weintraub

Facsimile: +972-3-608-7714

 

 

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EXHIBITA

TOTHIRD PARTY SECURITY AGREEMENT

 

Formof Guaranty Agreement

 

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EXHIBITBTO THIRD PARTYSECURITY AGREEMENT

 

INTELLECTUALPROPERTY

 

**Copyrights**

 
| **Description** | ** ** | **Jurisdiction**       | ** ** | **Registration  Number** | ** ** | **Registration    Date** |
|-----------------|------------|------------------------|------------|--------------------------|------------|--------------------------|
|            |       |                   |       |                     |       |                     |
| TestView        |       | U.S. Copyright  Office |       | Tx4221599                |       | 11/22/95                 |

 

**Patents**

 
| **Description**                                                    | ** ** | **Jurisdiction**                    | ** ** | **Registration/    Application   Number** | ** ** | **Registration    Date** |
|--------------------------------------------------------------------|------------|-------------------------------------|------------|-------------------------------------------|------------|--------------------------|
|                                                               |       |                                |       |                                      |       |                     |
| Method  of load testing web applications based on performance goal |       | U.S. Patent  & Trademark Office |       | 6,434,513                                 |       | 08/13/02                 |

 

**Trademarks**

 
| **Description**             | ** ** | **Jurisdiction**                                   | ** ** | **Registration/    Application   Number** | ** ** | **Registration/    Application   Date** |
|-----------------------------|------------|----------------------------------------------------|------------|-------------------------------------------|------------|-----------------------------------------|
|                        |       |                                               |       |                                      |       |                                    |
| Testview                    |       | U.S. Patent  &   Trademark Office              |       | 76/527,452                                |       | 07/03/03                                |
|                        |       |                                               |       |                                      |       |                                    |
| Radview                     |       | U.S. Patent  &   Trademark Office              |       | 2,479,424                                 |       | 08/21/01                                |
|                        |       |                                               |       |                                      |       |                                    |
| Webload (stylized  letters) |       | U.S. Patent  &   Trademark Office              |       | 2,104,400                                 |       | 10/07/97                                |
|                        |       |                                               |       |                                      |       |                                    |
| Testview                    |       | European  Community   Trademark Office (OHIM) |       | 3597218                                   |       | 01/02/2004                              |
|                        |       |                                               |       |                                      |       |                                    |
| Testview                    |       | Israel                                             |       | 169409                                    |       | 01/01/2004                              |
|                        |       |                                               |       |                                      |       |                                    |
| Testview                    |       | Japan                                              |       | 4775379                                   |       | 06/04/2004                              |

 

**DomainNames**

 
| radview.com |   | radview.net       |   | radview.us         |   | radview.org   |
|-------------|--------|-------------------|--------|--------------------|--------|---------------|
| webload.org |   | webloadtested.com |   | netizenbanking.com |   | radview.co.il |

 

 

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EXHIBITC

TOTHIRD PARTY SECURITY AGREEMENT

 

COLLATERALSUBJECT TO THE FLOATING CHARGE

 

The FloatingCollateral includes all Guarantor’s right, title and interest in all its present and future tangible andintangible assets and rights of any kind whether contingent or absolute,relating to all of Guarantor’s right, title and interest in and to thefollowing property, whether now owned or hereafter acquired and whereverlocated: (a) all Intellectual Property Collateral, (b) all Bank HapoalimCollateral and (c) all Collateral (as defined in the Share Pledge Agreement).

 

For the purposes of this Exhibit C, the following definitionsshall apply:

 

**“IntellectualProperty Collateral”**meansall of Guarantor’s right, title, and interest in and to the following:

 

(a)                                        Copyrights,Trademarks and Patents;

 

(b)                                       Anyand all trade secrets, and any and all intellectual property rights in computersoftware and computer software products now or hereafter existing, created,acquired or held;

 

(c)                                        Anyand all design rights which may be available to Guarantor now or hereafterexisting, created, acquired or held;

 

(d)                                       Anyand all claims for damages by way of past, present and future infringement ofany of the rights included above, with the right, but not the obligation, tosue for and collect such damages for said use or infringement of theintellectual property rights identified above;

 

(e)                                        Alllicenses or other rights to use any of the Copyrights, Patents or Trademarks,and all license fees and royalties arising from such use to the extent permittedby such license or rights;

 

(f)                                          Allamendments, renewals and extensions of any of the Copyrights, Trademarks orPatents; and

 

(g)                                       Allproceeds and products of the foregoing, including without limitation allpayments under insurance or any indemnity or warranty payable in respect of anyof the foregoing.

 

**“Copyrights”**meansany and all copyright rights, copyright applications, copyright registrationsand like protections in each work or authorship and derivative work thereof,whether published or unpublished and whether or not the same also constitutes atrade secret, now or hereafter existing, created, acquired or held.

 

 

**“Patents”**meansall patents, patent applications and like protections including withoutlimitation improvements, divisions, continuations, renewals, reissues,extensions and continuations-in-part of the same.

 

**“Trademarks”**meansany trademark and servicemark rights, whether registered or not, applicationsto register and registrations of the same and like protections, and the entiregoodwill of the business of Guarantor connected with and symbolized by suchtrademarks.

 

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EXHIBITD

TOTHIRD PARTY SECURITY AGREEMENT

 

Form(s)for Israeli Registrar of Companies

 

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